Officer charged in Gray death files motion contending arrest was legal because of knife type

BALTIMORE – One of the Baltimore police officers who arrested Freddie Gray wants the police department and prosecutor to produce a knife that was the reason for the arrest, saying in court papers that it is an illegal weapon.

The city’s top prosecutor, Marilyn Mosby, said Friday in charging the officer and five others that the knife was legal under Maryland law, meaning they had arrested Gray illegally.

Mosby announced charges against Nero and five other officers involved in Gray’s death after largely peaceful protests gave way to looting, arson and violence across Baltimore. Gray’s death came amid a national debate about the deaths of black men at the hands of police.

The motion was filed Monday by attorneys for Officer Edward Nero in Baltimore District Court.

Nero is charged with second-degree assault, misconduct in office and false imprisonment — all charges that can only be proven if Gray was wrongly arrested, said Andy Alperstein, a Baltimore attorney who has represented police officers but is not involved in the Gray case. If the knife was legal, “there is no case” against Nero and another officer because those charges all depend on the arrest being unlawful, he said.

“If the facts were that the knife was illegal than the Gray arrest would be justified. Even if it wasn’t illegal and the officers acted in good faith, it would be the same result. All charges fail,” Alperstein said.

Marc Zayon, Nero’s attorney, argues in his motion that the knife in Gray’s pocket — described in charging documents as “a spring assisted, one hand operated knife” — is illegal under both Baltimore’s switchblade ordinance and state law. Gray was charged under the city ordinance, which has a different definition than the state law of what constitutes a switchblade.

A city ordinance says any knife with an automatic spring or other device to open and close the blade is illegal. State law says a knife is illegal if it opens automatically by pushing a button, spring or other device in the handle.

Some spring-assisted knives are opened by pushing a thumb stud attached to the blade.

Many knives have these spring-assisted opening mechanisms but are not the automatic knives prohibited under Maryland law, said Michael Faith, marketing director for Henderson’s Sporting Goods in Hagerstown.

“An automatic knife means all you do is push a button and the blade pops out,” Faith said. “A lot of knives will have a little spring assist so when you push it open with your thumb, the knife will open up pretty much by itself.”

Police said officers chased Gray two blocks after making eye contact with him and subsequently found the knife in his pocket.

The Associated Press has made repeated requests to the police department for a physical description of the knife as well as photographs. Police later referred the request to the state’s attorney’s office.

Mosby announced the charges a day after receiving the investigative report from the police department.

Nero and Officer Garrett Miller are charged with misdemeanours. Four others — Sgt. Alicia White, Lt. Brian Rice and officers Caesar Goodson and William Porter — are charged with felonies ranging from manslaughter to second-degree ” depraved heart” murder.

Calls to attorneys representing Miller and Rice, who were involved in Gray’s arrest, were not immediately returned.

Mosby’s office declined to comment on a pending case, citing prosecutorial ethics.

Grey died April 19, one week after he received a spinal injury while in custody. Mosby said Gray was handcuffed and wearing leg restraints when he was placed face-down in the back of a police transport van. When Gray arrived at the police station roughly 45 minutes after his arrest, he was unresponsive.

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Associated Press writers David Dishneau and Ben Nuckols contributed to this story.